Thursday, March 29, 2012

*My video has kindly been linked to by Stop Abusive and Violent Environments here (and edited and embedded in their webpage on the right). Thank you to the team at SAVE!*

The greatest threat to the civil rights of male students in
higher education is the April 4th Directive, sometimes called the
“Dear Colleague” letter, issued in 2011 by the federal Department of
Education's Office on Civil Rights, which I will abbreviate from here on as the
OCR. In part 1 of this subseries on the April 4th directive, I’m
going to tell you what parts of the directive are bad for male students, and discuss
its reception.

It’s important to remember that there are many policies and
customs within academia that serve to disenfranchise and punish male students
for the crime of being born male. I’ll be discussing them in more depth in the
future. But this April 4th
Directive - the crown jewel of anti-male policy in higher education – is so
indifferent to the well-being of male students, and so broad in its influence, that
it deserves to be addressed on in depth and on its own.

In theory, the intention of the directive is to compel academic administrations
to render judgments in allegations of sexual misconduct on campus. In practice,
it does so in a way that cuts deeply into the rights of the accused, who are
almost exclusively male. The most egregious part of this Directive is that it
requires all colleges and universities which receive federal funding (in other
words, almost all of them) to adopt the Preponderance of Evidence standard when
determining whether a male student accused of sexual assault is guilty.

Page 10 of the directive says: “In
addressing complaints filed with OCR under Title IX, OCR reviews a school’s
procedures to determine whether the school is using a preponderance of the
evidence standard to evaluate complaint.” The next page reads “In order for a
school’s grievance procedures to be consistent with Title IX standards, the
school must use a preponderance of the evidence standard...the “clear and
convincing” standard…currently used by some schools, is a higher standard of
proof. Grievance procedures that use this higher standard are inconsistent with
the standard of proof established for violations of the civil rights laws, and
are thus not equitable under Title IX. Therefore, preponderance of the evidence
is the appropriate standard for investigating allegations of sexual harassment
or violence.”

What is the preponderance standard? To put it in context, the highest standard of proof would be the “Beyond a reasonable
doubt” standard, or ~95% certainty that the alleged crime occurred - the
standard normally used in criminal trials. A lower standard would be the “clear and convincing”
standard: ~80% certain that a crime occurred, or “it
is highly probable or reasonably certain that a crime occurred.” The lowest standard before completely reversing the
presumption of innocence is the “preponderance of evidence” standard, or 50.01%
certainty that a crime occurred. In other words, the toss of a coin. This is the
standard used to determine guilt for misdemeanors like traffic fines and
parking tickets, and now this incredibly low standard is used to determine
whether male students are guilty of felony offenses. It is my belief, and the
belief of many others, that this demand placed upon colleges and universities
by the OCR is unethical. Unethical and unconscionable, on the grounds that it such
shows extreme disregard for the rights of the accused, and demonstrates either
an ignorance or an extreme indifference to the suffering experienced by those
falsely accused of sexual assault.

Teri Stoddard is the program director for Stop Abusive andViolent Environments, or SAVE, an organization that speaks on behalf of the
falsely accused. On their website she states: “Campus procedures are not
criminal ones, so the accused do not enjoy Constitutional protections. Now,
jilted lovers can ruin the lives of teachers and students with false
allegations of rape.” And she’s right. Trials conducted in academia are not like criminal trials conducted with
lawyers, judges, rules of evidence, and thorough means of documentation, like
court recorders. In academia, the accused are not afforded the right to
cross-examine their accusers before judgments are entered against them, as they
would in a trial. Page 12 of the directive states: “OCR strongly discourages
schools from allowing the parties to question or cross-examine each other
during the hearing.”

Hans Bader is a former attorney for the
Department of Education. In his article “Why Cross-Examination Rights Matter inCampus Sexual Harassment Cases under Title IX,” he writes of the OCR’s statement
forbidding cross-examination during the hearings, “This is perverse,
since the subjective nature of the legal definition of harassment means that
there is no category of cases in which cross-examination is more useful or
essential to ensure due process.

“Sexual harassment cases commonly turn not only on such
credibility disputes, but also on the complainant’s alleged subjective
emotional state, which makes cross-examination far more essential than in the
ordinary campus discipline case. (By contrast, other kinds of disciplinary
cases often turn solely on objective events that can be verified without
any cross-examination of the accusing witness).

“Even if it did not violate the Constitution, the Department
of Education’s assault on cross-examination would still be unjustified, since
cross-examination has justly been called "the most powerful engine for the discovery of truth ever devised.” In sexual harassment cases
brought in court, the defendant invariably has the opportunity to cross-examine
the accuser, because courts recognize that cross-examination is useful in
exposing false allegations."

Under this directive, students accused of sexual misconduct
are also no longer given due process protections from double jeopardy, a false accuser
may try her case, along with all its other attendant violations of due process,
a second, and even a third time, until a judgment is entered against the man
falsely accused. Page 12 of the directive states, “OCR also recommends that schools provide an appeals process. If a school
provides for appeal of the findings or remedy, it must do so for both parties.”

An article was published in the Chronicle for Higher
Education in June 2011, the title of which reads “In making campuses safer forwomen, a travesty of justice for men.” The author, Professor Christina Hoff
Sommers, informs us, “Marching under the banner of Title IX and freed of
high standards of proof, campus disciplinary committees, once relatively weak
and feckless, will be transformed into powerful instruments of gender justice.
At least, that is the fantasy. But here is the reality: Campus disciplinary
committees—often a casual mix of professors, students, and an assistant dean or
two—are well suited to resolving cases involving purported plagiarism and cheating,
and violations of college rules on drugs and alcohol. But no one considers them
prepared to adjudicate murder, arson, kidnapping cases, or criminal assault.
They lack the training and the resources to investigate and adjudicate
felonies."

Sexual assault, and false accusations of sexual assault, are among the most
nebulous crimes in existence. Most cases are he simply said/she said, with no
physical evidence, and where we cannot tell if either party is embellishing,
lying, telling the whole truth, or hiding half of it. The definitions of what
constitutes rape change from person to person, making one person’s rape another’s
false accusation. They are also among of the most politicized crimes in our
jurisprudence. In other words, sexual assault, and false accusations of the
same, are crimes that academia should not be adjudicating if they can help it,
and should instead deferring to law enforcement, who are more properly trained
than university administrations.

Unfortunately, that’s where the second most harmful part of
the April 4th Directive both ties and forces the hands of academic
officials. Previously, colleges and universities tended to conduct mediation
and let the police handle weighty felony decisions. No longer. Page 3 of the
directive reads, “The school’s Title IX investigation is different from
any law enforcement investigation, and a law enforcement investigation does not
relieve the school of its independent Title IX obligation to investigate the
conduct.”

So what happens when police, investigators, and courts use a
higher standard of evidence than academia, when their investigations are mostly
conducted separately, and when the academy feels obligated to render judgments
on felony offenses with bureaucrats whose areas of expertise is presiding over
cases of plagiarism and underage drinking? At times, they will come to
completely different conclusions, and one of them, usually the academy, will
end up looking foolish. An article in the online publication Townhall titled “The Rape of Caleb Warner” reads:

“At the University of North Dakota (UND) the unthinkable has become a
reality. A student has been found guilty of sexual assault despite the fact
that local police refused to charge him with a crime – any crime. In fact, the
police have charged his accuser with lying about the very incident that led to
his campus conviction. And the punishment is not insignificant. Former student
Caleb Warner has been banned by UND from setting foot on any North Dakota
public campus for three years. Meanwhile, his accuser has been wanted by the
Sheriff's Department on the charge of making a false report.

FIRE is an organization dedicated to protecting the rights
of free speech and due process in higher education. Since it primarily exists
to protect students from abuses of academic authority, it is in the best
interest of students that they become familiar with the organization and its
website. More on FIRE later.

The next interesting part of the directive is on page 5: “In cases involving potential criminal conduct, school
personnel must determine, consistent with State and local law, whether
appropriate law enforcement or other authorities should be notified.”

The accuser doesn’t have to make a formal claim to law enforcement at all. And the implications
are significant. It is entirely possible that a male student may be falsely
accused and banned from his school without any pretense of due process, without
his accuser ever having brought her claim law enforcement, where he might be
exonerated. What would have happened if Caleb Warner’s false accuser had never made
a formal claim, and had instead relied solely her hangmen in Judicial Affairs? Caleb
Warner would never have been exonerated, either in his local community or in
the national press, as he is now, and the full weight of that accusation would
hang over his head for the rest of his life.

The fifth amendment right of citizens to not falsely incriminate themselves, which
includes their right to remain silent,
and to not testify against themselves, is an often overlooked and misunderstood
element of our jurisprudence. The reason for its existence is that unscrupulous
and/or politically-motivated prosecutors and police can cherry-pick, twist,
embellish, and flat-out lie about what the accused says. Consider this lecture on exercising your right to remain silent by James Duane, former
defense attorney and professor at Regent Law School.

As we can see, it is important that those accused are aware
of their right not to falsely incriminate themselves, and to instead remain
silent. Consider the implications if a falsely accused student had made similar
statement during a university investigation. If the school conducts its
investigation before the police conduct theirs, the falsely accused student,
while he conversing with academic officials in a supposedly private interview, may
not understand, while he is lulled into a false sense of security, that
everything he says can be twisted into lies and used against him in court.

The Foundation for Individual Rights in Education says, in
its “Guide to Due Process and Fair Procedure on Campus,” "If you have both
a university disciplinary hearing and a criminal trial pending, you will almost
always want to get your disciplinary hearing postponed until after the criminal
matter is settled. Holding the disciplinary hearing before the criminal
trial can be very dangerous, because what you say at the campus hearing-where
you have far fewer protections than in a court of law - can be used against you
in the criminal case."

But on page 10, the April 4th directive states, “Schools should not wait for the conclusion of a
criminal investigation or criminal proceeding to begin their own Title IX
investigation and, if needed, must take immediate steps to protect the student
in the educational setting. For example, a school should not delay conducting
its own investigation or taking steps to protect the complainant because it
wants to see whether the alleged perpetrator will be found guilty of a crime.”

To their credit, while police may sometimes resort to
unscrupulous tactics, they often have the decency to inform the accused upfront
that anything they say can be used against them in a criminal trial, and that
they have the right to remain silent to avoid falsely incriminating themselves.
Academia, unfortunately, does not yet possess this integrity.

Other parts of the directive are not unethical per se, but
are problematic in that they ignore the suffering of the falsely accused, and
fail to advise academia on how to best protect them. On page 5 the directive
says, “The school also should tell the
complainant that Title IX prohibits retaliation, and that school officials will
not only take steps to prevent retaliation but also take strong responsive
action if it occurs.” Nowhere in the 19 pages of this directive does it mention
protecting the accused from retaliation or from those who create a hostile
environment toward them. The article in the Chronicle of Higher Education reads:

“In 2006 three Duke University lacrosse players were falsely
accused of gang rape. They endured a nightmarish, yearlong ordeal in which
abundant evidence of their innocence seemed not to matter at all—not
to the police, not to the prosecutor, not to Duke's faculty or president. Protesters
gathered outside the lacrosse house carrying a banner with the word CASTRATE, banging pots and pans, and chanting "Confess,
confess!" Student vigilantes plastered the campus with "Wanted"
posters bearing the players' photographs. Duke professors took out
an ad in a local newspaper in support of the pot bangers and poster wielders.
After living under suspicion for months, the players were ultimately exonerated
by prosecutors, who dropped all charges.”

Men and boys who are falsely
accused of sex crimes are sometimes subject to brutal and fatal vigilante attacks. What “strong responsive action” will customs and policies will require
universities to take steps to protect male students from such attacks? The
answer, of course, is none.

So to summarize what is bad about the April 4th directive:

Lowers standard of
evidence to the unethically low “preponderance” standard

Denies the accused party
the due process rights to cross-examine accusers

Violates constitutional due
process protections from double-jeopardy

Infringes upon student’s 5th
amendment right to not falsely incriminate themselves

Investigates independently
from, rather than deferring to, professionals in law enforcement

Fails to protect falsely
accused students from retaliation

The April 4th
Directive represents an unethical and systemic attack on the civil rights of
male students. It is ironic and disconcerting that a department which calls
itself the Office of Civil Rights would overlook these rights, which are widely
regarded as fundamental elements of our jurisprudence, and for good reason.

“Obviously, this is an extremely controversial issue.
Sexual assault, particularly rape, is among the most heinous of crimes,
and too often attitudes about what constitutes consent are insufficient. But
this is not about what constitutes actual sexual assault. This is about
the natural and constitutional rights to due process. It doesn’t take James
Madison to see why 50.0001% is not enough evidence to justify ruining someone’s
life.”

This is not about being on the left or the right. This isn’t
about being black or white, or gay or straight, or even male or female. This is
about whether or not those accused of felony offenses, the conviction of which
destroys reputations, careers, relationships, and often their lives, should be
judged by the same standard of evidence used for traffic fines and parking
tickets.

Thursday, March 22, 2012

In Production: The War on Male Students, a new YouTube series focusing on the structural and cultural barriers men and boys face in modern education. It is divided into three main areas: educational attainment, academic culture, and rights & protections. This page will act as a table of contents for this series, and will be updated as new videos are posted. View the introduction video here:

See the YouTube series HERE (videos will also be linked in their respective blog posts).The banners used at the beginning of almost every video: